Bombay High Court
Mr. Satish Damodar Salvi vs Registrar, Small Causes Court, ... on 21 April, 2017
Bench: S.C. Dharmadhikari
ASWP11250.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11250 OF 2015
Mr. Sandeep Tulshiram Mohite, age 40 ]
years, Occupation - Service, Address : ]
E/112, Mahatma Gandhi, Smruti ]
Vasahat, Jerbai Wadia Road, Bhoiwada ]
Mumbai - 400 012. ] ... Petitioner
Versus
1. Registrar, Small Causes Court, ]
Mumbai. ]
2. Registrar, Bombay High Court, ]
Mumbai. ]
3. State of Maharashtra, through the ]
Secretary, General Administration ]
Department, Government of ]
Maharashtra, Mantralaya, Mumbai ] ... Respondents
WITH
WRIT PETITION NO. 11251 OF 2015
Mrs. Smruti Sandesh Lingayat, age 40 ]
years, Occupation - Service, Address: ]
Devrukhar Sonar Chawl, Room No.1, ]
Ambika Nagar, Jogeshwari (E), ]
Mumbai - 400 060. ]
Versus
1. Registrar, Small Causes Court, ]
Mumbai. ]
2. Registrar, Bombay High Court, ]
Mumbai. ]
SRP 1/56
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3. State of Maharashtra, through the ]
Secretary, General Administration ]
Department, Government of ]
Maharashtra, Mantralaya, Mumbai ] ... Respondents
WITH
WRIT PETITION NO. 11252 OF 2015
Mr. Avinash Bandu Jadhav, Age 46 ]
years, Occupation - Service, Address: ]
B-143/5, Government Colony, ]
Bandra (E), Mumbai - 400 051. ]
Versus
1. Registrar, Small Causes Court, ]
Mumbai. ]
2. Registrar, Bombay High Court, ]
Mumbai. ]
3. State of Maharashtra, through the ]
Secretary, General Administration ]
Department, Government of ]
Maharashtra, Mantralaya, Mumbai ] ... Respondents
WITH
WRIT PETITION NO. 11253 OF 2015
Mr. Uttam Gangaram Tambe, age 49 ]
years, Occupation - Service, Address: ]
Building No.7, Room No.1225, ]
Govt. Colony, Bandra (E) ]
Mumbai - 400 051. ]
Versus
1. Registrar, Small Causes Court, ]
Mumbai. ]
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2. Registrar, Bombay High Court, ]
Mumbai. ]
3. State of Maharashtra, through the ]
Secretary, General Administration ]
Department, Government of ]
Maharashtra, Mantralaya, Mumbai ] ... Respondents
WITH
WRIT PETITION NO. 11254 OF 2015
Mr. Satish Damodar Salvi, age 40 years]
Occupation - Service, Address: B44/8, ]
Govt. Colony, Bandra (E), ]
Mumbai - 400 060. ]
Versus
1. Registrar, Small Causes Court, ]
Mumbai. ]
2. Registrar, Bombay High Court, ]
Mumbai. ]
3. State of Maharashtra, through the ]
Secretary, General Administration ]
Department, Government of ]
Maharashtra, Mantralaya, Mumbai ] ... Respondents
Mr. Gunratan Sadavarte for the Petitioners in all the petitions.
Mr. S.R. Nargolkar for the Respondent Nos.1 & 2 in all the
petitions.
Ms. Sushma Bhende, AGP, for the Respondent No.3 in all the
petitions.
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CORAM : S.C. DHARMADHIKARI &
B.P. COLABAWALLA, JJ.
Reserved On : 13 th JANUARY, 2017
Pronounced On: 21ST APRIL, 2017
JUDGMENT : [Per S.C. Dharmadhikari, J.]
1 These five petitions under Article 226 of the
Constitution of India raise common issues of fact and law. They
were heard together and are, therefore, disposed of by this
common judgment.
2 These batch of petitions came to be assigned by an
order passed on 15th December, 2015, to a Bench presided over
by S.C. Dharmadhikari, J. These writ petitions challenge an
order passed by the competent authority, namely, the Chief
Judge, Court of Small Causes at Mumbai dated 16 th November,
2015. The order reads as under :
" ORDER
In view of direction of the Hon'ble High Court
contained in its letter No.F.3720/2001, dated 11 th
December, 2001, at Sr. No.31 and further directions
issued by the Hon'ble High Court in Inspection Note of
this Court, 2015, vide its letter dated 12 th October,
2015, at Sr. No.43, the following staff members who
were initially appointed to the post of "Hamal" on the
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establishment of this Court are hereby removed from
the Government Service with effect from Monday, the
16th November, 2015 (A.O.H.).
Sr. No. Name and Designation of staff members
1 Shri S.T. Mohite, Hamal
2 Shri A.B. Jadhav, Bailiff
3 Smt. S.S. Lingayat, Clerk-Typist
4 Shri U.G. Tambe, Hamal
5 Shri S.D. Salvi, Clerk-Typist
In view of above, the Office is hereby directed
to take the necessary steps to pay the dues, as
admissible to them, as per rules by recovering
Government dues, if any, pending against them, at the
earliest.
The Office is further directed to take note of
this Order and its compliance in their Original Service
Books.
Sd/-
Prithviraj K. Chavan
Chief Judge"
3 It is aggrieved by this order and which is common to
the petitioners in the above petitions, that it is prayed that it be
quashed and set aside. That, a writ of mandamus or any other
writ, order or direction in the nature thereof be issued for
absorption of the petitioners in the services on the establishment
of the Court of Small Causes, Bombay. Alternatively, their
services be regularized.
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4 The petitioner Sandeep Tulshiram Mohite in Writ
Petition No. 11250 of 2015 has pointed out that he is in service
on the establishment of the Small Causes Court, Mumbai, since
last 18 years. He is appointed under a Government Scheme for
appointment of relatives of the retired Class IV Government
employee which has been set out in the Government Resolution
dated 10th December, 1981, and the prior Resolution dated 14th
April, 1981. The petitioner states that he is entitled to the
benefits on par with the permanent Government servants and
has relied upon the communication dated 16 th January, 2002, by
the appointing authority, namely, the Registrar, Small Causes
Court, Mumbai, to the Registrar of this Court. The petitioner
submits that though initially appointed on temporary basis, but
by following due procedure of law, he is rightly continued in
service. The post is a sanctioned post. There is no technical
break. It is in these circumstances that the petitioner points out
that he was a beneficiary of a Scheme of the State of
Maharashtra which is made applicable to the establishment of the
first respondent. The petitioner was appointed as Hamal. He has
been discharging duties to the satisfaction of all concerned. The
petitioner states that the appointment is an exception to the
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general mode, but none of the procedural requirements were
dispensed with. The petitioner underwent a medical test. A
service book also has been prepared. The petitioner possessed
the educational or other qualifications. He was within the
prescribed age limit. He is the only heir of his father. Since the
father was in the employment of the respondent No.1, upon his
retirement, in view of the above mentioned Scheme, the
petitioner was appointed. The petitioner points out that his name
was duly enrolled in the Employment Exchange at Mumbai.
Thus, the petitioner submits that on 11 th December, 2001, a letter
may have been addressed by the Additional Registrar of this
Court to the then Chief Judge of the Court of Small Causes, but
that letter was replied on 16th January, 2002. That letter clarified
that the petitioner is an Employment Exchange candidate
selected for the post of Hamal. His name is on the Wait List at Sr.
No.13. That has been informed vide the first respondent office
letter dated 4th January, 2002 and that the petitioner would be
appointed as a Hamal on the establishment of the Small Causes
Court as per seniority as and when vacancy would arise. So far as
the appointment of the five candidates, namely, S.T. Mohite, A.B.
Jadhav, V.G. Tambe, S.D. Salvi and A.H. Lingayat made in
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pursuance of the directions contained in the Government Circular
dated 14th April, 1981 and 10th December, 1981 are concerned,
those appointments have been made by dispensing with the
condition of recommendation of the Employment Exchange for
appointment on Class III and Class IV posts. That stipulation is
now relaxed or cancelled by the Government of Maharashtra and
reliance is placed on a Circular of 14 th April 1981 and 10th
December, 1981. Thus, the retiring / outgoing retired employees
were to be appointed in Class IV post only. The son or unmarried
daughter of Class IV Government servant who retires or is about
to retire are exempt from the requirement of enrollment of their
names at the Regional Employment Exchange. That is only in
relation to appointments in Class IV posts. However, they should
fulfill the other conditions laid down in these Circulars. Reliance
was placed by the then Chief Judge on the High Court's letter
dated 18th October, 1991, and the Government Circulars referred
above applicable to subordinate Courts in Greater Bombay. Thus,
these appointments of five employees have been made in
accordance with the Government Circular. It is stated that the
Government Circular of 14th April, 1981, does not contain any
directions as are stipulated in the earlier Government Circular
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dated 2nd December, 1968. The petitioner relies upon the
contents of this letter to submit that none of the appointments
contravene any law. Thus, the petitioner could not have been
treated as a candidate entering the service or the employment by
a back-door method. His appointment is against a sanctioned
and approved post. All requirements have thus been followed.
The writ petition is replete with references to several judgments
of the Hon'ble Supreme Court. It is not necessary to make a
reference to them. The petition also refers to several other
Government Resolutions and Policies enunciated therein to
submit that the appointments cannot be said to be illegal or
unauthorised. The petitioner, therefore, challenges the impugned
communication / order on the ground that the same violates the
mandate of Articles, 14, 16 and 21 of the Constitution of India.
The petitioner also submits that the services rendered are
blemishless.
5 On such a writ petition, an affidavit-in-reply was filed.
In that affidavit-in-reply the second respondent contends as
under :
"3 The petitioner has approached this Hon'ble
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Court seeking a writ of mandamus under Article 226
of the Constitution of India for absorption /
regularization of the services o the Petitioner and also
for quashing and setting aside the impugned order
whereby the Petitioner was removed from service. It
is the contention of the Petitioner that the Petitioner
was appointed as a Hamal on the establishment of the
Small Causes Court, Mumbai and that his initial
appointment was in accordance with the Government
Resolution dated 14.4.1981and that he has been
working since 17.1.1997. It is further contended that
by virtue of such a long service and also in view of the
fact that his appointment was legal and proper, the
relief of regularization / absorption ought to be
granted to him. It is further contended in the petition
that termination of his services was illegal and
improper. The Petitioner relies upon the Circular
issued by the Government of Maharashtra on
14.4.1981, a copy of which is annexed as Exh.C to the
petition. The Petitioner also relies on an explanatory
Circular issued by the Government of Maharashtra on
10.12.1981. It is the contention of the Petitioner that
the Petitioner has been appointed in place of his
father, who has retired from services in the same
establishment. It is further contended that the
dependents of retired employees are entitled to be
appointed on regular and permanent basis by virtue of
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the said Government Circular dated 14.4.1981 as
clarified by the Government Circular dated 10.2.1981.
.........
5 I say and submit that reliance placed on the
Circular dated 14.4.1981 is misconceived. A perusal
of the said Circular dated 14.4.1981 makes it clear
that the same was issued to relax certain conditions
imposed by the Government Resolution dated
2.12.1968. The Circular dated 2.12.1968 has been
issued by the Government of Maharashtra in its
Department of General Administration. In the said
Circular, directions have been given to the effect that
all appointing authorities should make appointments
by following the regular process of calling candidates
from the Employment Exchanges.
6 A reference is made to the Government
Circular dat3ed 23.10.1956 which is the first such
Circular issued by the Government in respect of filling
up of vacancies of temporary nature and/or fill up all
vacancies till regularly selected candidate is available.
The Government Circular dated 23.10.1956 directed
the appointing authorities that the vacancies which
are likely to last for more than a month, and which are
not required to be filled in by promotion or through
the Public Service Commission, should be notified to
the Employment Exchanges with a request to depute
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suitable candidates for appointment therein and the
vacancies which are not likely to last for more than a
month need not to be reported to the Employment
Exchanges only if the appointing authorities
concerned are satisfied that there is no adequate time
to obtain candidates from the Employment
Exchanges.
7 It was noticed by the Government that
despite the said mandate contained in the
Government Circular dated 23.10.1956, the
employees were being recruited to Class III and Class
IV posts otherwise than through Employment
Exchanges and hence with a view to put a stop to this
irregularity, the Government again issued Circular
dated 23.8.1965 to the effect that the appointing
authorities should take particular care to see that the
Government orders conveying need for making
recruitment through the Employment Exchanges are
followed scrupulously and even where, in view of
urgency, they are forced to make appointment
directly without reference to the Employment
Exchanges, they should ensure that the persons so
appointed are not continued in service for more than
three months and that they are replaced by persons
recruited through the Employment Exchange within
this period.
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8 It was further brought to the notice of the
appointing authorities by the Government, that
instead of interpreting the orders contained in
Government Circular dated 23.8.1965 as a measure to
avoid immediate dislocation of work, some appointing
authorities have misinterpreted them as a permission
to make direct recruitment upto a period of three
months straightway without making any efforts to
obtain candidates from Employment Exchanges. The
Government was, therefore, constrained to issue
Circular dated 2.12.1968 thereby mandating that on
such posts which are likely to continue beyond one
month for any reason, the persons appointed directly
should be replaced by Employment Exchange
candidates as early as possible and in any case within
three months. It was further directed that this
mandate should not be interpreted as a permission to
make direct recruitment to vacancies which are likely
to last upto a period of three months. It was further
made clear that in very exceptional circumstances,
the candidates may be recruited otherwise than
through Employment Exchanges, and they should not
be continued beyond three months. The mandate of
the Government was, therefore, clear that regular
appointment should not be and cannot be made
directly by the appointing Authorities under any
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circumstances whatsoever. It was also further made
clear that even if the vacancies are of temporary
nature, the same should not be filled in directly
without first taking recourse to the procedure of
calling candidates from the Employment Exchanges.
Thus the entire Government Circular is on the issue of
filling up of vacancies temporarily. The Circular dated
14.4.1981 is nothing but a clarification of the Circular
dated 2.12.1968 and a relaxation of certain conditions
imposed by the Circular dated 2.12.1968.
9 In cases where an employee has retired
from Government service by way of superannuation
or where the Government servant has voluntarily
retired from service and where his dependent/
progeny applies for temporary appointment, it would
not be necessary for the appointing authority to call
for candidates from the Employment Exchange to fill
in the said post till a regularly selected candidate is
made available. Thus by the very nature of
instructions contained in the Circular dated
14.4.1981 read with Circular dated 2.12.1968, the
nature of appointment and purpose of appointment
was a temporary appointment so as to avoid
dislocation of work. Circular dated 14.4.1981 cannot
be interpreted to mean that license was granted to
appoint on a regular basis and permanent basis, the
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progeny of Government servant who had retired. Thus
the contention of the Petitioner that he was regularly
appointed in the Government service by virtue of the
provisions contained in Circular dated 14.4.1981 is
wholly misconceived.
10 It is submitted that the purpose of the
Government Circular dated 2.12.1968 and Circular
14.4.1981 is to avoid immediate dislocation of work
and not to give regular appointment to the progeny of
the retired employee. It is respectfully submitted that
in view of Articles 14 and 16 of the Constitution of
India, transparency and fair play is expected in the
matters of employment and that equality has been
guaranteed to all citizens of India. Any departure
from the same has to be by virtue of some provisions
of law, that too such provisions which can stand the
test of validity despite the fact that they are an
exception to Articles 14 and 16 contained in Part-III
of the Constitution of India and hence no departure
which is in contravention of the fundamental rights
guaranteed by Part-III of the Constitution can be made
unless there is specific provision in any law to that
effect. Compassionate appointment is an exception to
Articles 14 and 16 of the Constitution which has been
upheld as a measure to provide immediate relief to an
employee, who has died in harness. However, the
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compassionate appointment and the appointments
sought to be made under Circular dated 14.4.1981
stand on different footing altogether, inasmuch as
compassionate appointment is given to a relative of
deceased employee who has died in harness and the
appointments to be made of the dependents of
Government servants who have superannuated
cannot be made on regular basis. In case of deceased
employee, the death is an unexpected event whereas
in case of superannuation of an employee, the event is
a planned event. In case of voluntary retirement and,
in case of retirement upon reaching the age of
superannuation, the same are planned events and
known to the employee even before they actually
happen.
11 The death of the breadwinner is an
unexpected shock to the family of the deceased
government servant thereby causing sudden financial
difficulties, whereas a retired/superannuated
employee is entitled to pension and thereafter the
dependents are entitled to family pension. The
superannuated employee also gets benefits of gratuity
and provident fund which may have been accrued and
earned during his service and to other such benefits.
Thus the case of superannuated employee can be
distinguished from the case of an employee dying in
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harness. The dependents of a superannuated
employee have no right to claim appointment and are
not entitled to be appointed without being selected in a
proper process of selection. The due process of
selection has to be followed by issuing proper
advertisement and calling for candidates from the
Employment Exchanges.
12 With regard to the contents of letter dated
16.1.2002 (Exhibit 'E' of the Petition) addressed by
the incumbent Chief Judge, it is respectfully
submitted that the then learned Chief Judge tried to
distinguish the Government Circulars dated
2.12.1968 and 14.4.1981 on the basis that the
Circular of 1968 relates to the appointment in
vacancies of Class III and Class IV posts whereas
Circular dated 14.4.1981 relates to the vacancies of
class IV employees only, that too with regard to the
appointment of son/unmarried daughter of the retired
class IV Government servant or who is due to retire
within a period of one year.
13 The learned Chief Judge in the letter dated
16.1.2002 has also contended that the circular dated
14.4.1981 did not contain the directions that the
Appointing Authority should replace the son /
unmarried daughter of the retired Class IV
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Government Servant so appointed directly either in
short term or long term vacancies for more than
three months, as contained in the Circular of 1968.
14 It is respectfully submitted that the
inferences drawn up by the learned Chief Judge in the
letter dated 16.1.2002 cannot be said to be true and
correct interpretation of these two Circulars. The sole
object of the circular dated 14.4.1981 is to relax the
conditions contained in the Circular dated 2.12.1968
in respect of recommendations from Employment
Exchange in the case covered by Circular of 1968
namely temporary appointments, to avoid dislocation
of work.
15 It is submitted that vide letter dated
11.12.2001 (Exhibit 'D' of the Petition), the Hon'ble
High Court, Bombay through Additional Registrar,
High Court, Bombay had informed the then incumbent
Chief Judge, Court of Small Causes that the Hon'ble
Lordships had directed to take necessary steps for
removal of 5 employees (including the present
petitioner) whose appointments have been continued
for the period exceeding three months on the basis of
wrong interpretation of the Government Circulars.
The Hon'ble Lordships had further directed to inform
to the learned Chief Judge, Small Causes Court to be
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very careful in future while giving appointments to
the children of retired Class-IV Government Servants
in view of the Government Circulars in which it is
clearly mentioned that the employment to the son/
unmarried daughter of retired Class-IV Government
Servant in Government Service may be given without
recommendations of the Employment Exchange only
on temporary basis not exceeding the period of three
months and not on permanent basis.
16 It is submitted that the conclusion drawn by
the then incumbent Chief Judge vide letter dated
16.1.2002 to the effect that the appointments of the
five employees (including the present Petitioner) are
regular one was incorrect conclusion, owing to the
wrong interpretation of the Government Circulars.
17 It is also submitted that the Chief Judge,
Court of Small Causes had also enquired with the State
Government in respect of the appointment of children
of the retired Class - IV Court employees and
Government of Maharashtra State vide letter dated
14.12.2006 had specifically informed that the
requirement of recommendation of the names of
candidates from the Employment Exchange as
incorporated in Government Resolution dated
2.12.1968 was only relaxed by the Government
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Resolution dated 14.4.1981, but rest of the orders,
conditions are in force. This letter is also self
explanatory to conclude that the recruitment was to
be made by the following due process. The letter dated
14.12.2006 is marked and annexed at Annexure -
'R-1'
18 It is submitted that the removal of the
Petitioner is not only justified, but so warranted as the
same is legal, valid and proper. Since the initial
appointment of the Petitioner was not through
regularly constituted selection process initiated by
giving fair opportunity to the eligible candidates by
following due procedure, there is no question of grant
of permanency to him. The appointment of the
Petitioner was on ad-hoc and temporary basis as
contemplated by the Circulars of 1956, 1968 and
1981 as referred above and no amount of such service
can entitle the Petitioner to the permanency in public
service. The Petitioner cannot rely upon the contents
of the letter dated 16.1.2002 which are primarily a
result of incorrect interpretation of the Government
Circulars, to substantiate his contentions.
19 The appointment order issued to the
present Petitioner which is at Exh.B (page 39) to the
paper book also factually mentions that the Petitioner
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is being appointed as a Hamal on a temporary basis. It
is thus clear from the appointment order itself that
the appointment which is made, is clearly on
temporary basis and only till further orders. In fact
Circular dated 14.4.1981 merely relaxes condition
that the candidate appointed temporarily need not be
recommended by the Employment Exchange and that
a candidate, who is a progeny of a retired employee
can be appointed temporarily that too till regularly
selected candidate is made available. Thus the initial
appointment of the Petitioner was not on regular
establishment and the proper recruitment procedure
was not followed before the Petitioner was appointed.
If the services of the Petitioner are regularized and/or
the Petitioner is absorbed in regular service, the same
would amount to regularization of services of a back
door entrant in public service which has been frowned
upon by the Apex Court in several decisions. The
judgment of the Supreme Court in the case of
Secretary, State of Karnataka & others v/s.
Umadevi and others, (AIR 2006 SC 1806)
mandates that back door entry in public service
should not be regularized and no permanency or
regularization can be granted to the employees who
have not been appointed in accordance with the rules.
6 The respondent No.2 thus supports the impugned
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action. He also brings to the notice of this Court that on the
Administrative side, on several occasions, the establishment
(first respondent) was informed not to go on with the process as
understood by the Registrar of the Court of Small Causes, but to
strictly adhere to the Government Policies and Schemes as
enumerated in the above Government Resolutions, but applicable
to the services in the Court of Small Causes which is a
subordinate court at Bombay. Once the petitioner was appointed
only on a temporary basis, unless regularly selected candidate is
made available through a proper selection process, it cannot be
said that he has any right to the post. The petitioner has not been
appointed through such a selection process. Hence, no question
of regularization of his services would arise and regularizing
them would tantamount to endorsing a back door entry in public
employment. That is impermissible. That is why the writ petition
should be dismissed.
7 These writ petitions were placed before a Division
Bench presided over by one of us (S.C. Dharmadhikari, J.) on
several occasions and from 1st February, 2016, time was granted
to Mr. Nargolkar appearing for the second respondent to
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ascertain as to what steps this Court proposes to take on the
Administrative side. Since instructions to that effect were
received by Mr. Nargolkar, particularly that this Court would
examine the matter on the Administrative side, we granted the
adjournments as prayed by him. Eventually, after eight months
and more, the Court was informed on 9 th August, 2016, by Mr.
Nargolkar that the petitioner's request for regularization of his
services has been turned down / rejected. The decision to that
effect was placed before us. Noting that, on 9th August, 2016, the
following order was passed :
" Mr. Nargolkar states that there is a decision
taken on the administrative side of this court and by
which, the request made by the petitioners has not
been accepted. A copy of this resolution is taken on
record and marked as 'X' for identification. To enable
the petitioners' advocate to amend the petitions and
challenge this resolution, we grant leave to amend.
The amendment to be carried out within a period of
one week from the date of receipt of a copy of this
resolution.
2) List on 30th August, 2016."
8 After that, the writ petition was posted on 21 st
September, 2016, when time was sought to file an affidavit to the
amended Memo. Thereafter, the above affidavit has been filed.
Prior to 6th October, 2016, we had granted time to Mr. Sadavarte
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appearing for the petitioners to indicate whether the petitioners
wish to put any rejoinder on record. He submitted that the
petitioners would proceed on denials. They do not desire to put in
a rejoinder affidavit. A compilation of the judgments was handed
over by Mr. Sadavarte in Court. That is how these writ petitions
were placed before us on subsequent occasions. We permitted
both sides to file their written arguments as well. On 13 th
January, 2017, we were informed, after some brief oral
arguments, that the written arguments placed on record by Mr.
Sadavarte be duly noted and considered and a judgment
delivered relying on the same. That is how we have proceeded.
9 Mr. Sadavarte, in his oral arguments as also in the
written note filed in each of the matters, firstly invites our
attention to the position that each of the petitioners have been
working from 1997 / 1999. Each of them have rendered
unblemished and selfless service. Each of them has not entered
by a backdoor method. The petitioners have pointed out as to
how they were appointed against regular vacancies and by a
process known to law. Their services have been continued
without any break. Thus, they have rendered uninterrupted
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service. The abrupt termination thereof by the impugned order is
not only contrary to law, but violates the mandate of Articles 14
and 16(1) of the Constitution of India. Mr. Sadavarte would
submit that this is not a case on par with the cases and dealt with
by the Supreme Court, including in the judgment relied upon by
the respondents [Renu & Others vs. District & Sessions Judge,
Tis Hazari and Anr. AIR 2014 SC 2175]. Mr. Sadavarte would
submit, therefore, we should not accept the stand of the
respondents as reflected in the affidavit-in-reply, but proceed to
allow these petitions.
10 Mr. Sadavarte relies upon the following decisions in
support of his contentions :
(1) Secretary, State of Karnataka & Ors. vs. Umadevi &
Ors., (2006) 4 SCC 1.
(2) State of Karnataka & Ors. vs. M.L. Kesari & Ors. AIR
2010 SC 2587.
(3) Dulu Devi vs. State of Assam & Ors., Civil Appeal
No.8249 of 2015 in SLP(C) No.19947 of 2010 decided on 9 th
October, 2015.
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(4) State of Jharkhand & Ors. vs. Kamal Prasad & Ors.
AIR 2014 SC (Supp) 390.
(5) Sachin Ambadas Dawale & Ors. vs. State of
Maharashtra & Ors. Writ Petition No. 2046 of 2010 decided on
19/10/2013 (Nagpur Bench)
(6) Ujwal Ganesh Sadhu & Ors. vs. State of Maharashtra
& Anr., Writ Petition No.10145 of 2014 decided on 17h January,
2002.
(7) Ganesh Sitaram Mayne vs. The Chief Conservator of
Forests & Ors., Writ Petition No.11408 of 2014 and Anr. Decided
on 13th March, 2015.
11 On the other hand, Mr. Nargolkar, learned counsel
appearing on behalf of the respondents and particularly the
contesting respondents submits that in the affidavit-in-reply, it is
pointed out as to how the petitioners have been appointed and
relying upon a Circular dated 14th April, 1981 and a further
Circular dated 10th December, 1981. This is not an appointment
by any process known to law, but a retiring employee names a
dependent who, after the retirement / superannuation of that
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employee, enters the service. Mr. Nargolkar would submit that
the reliance placed on these Circulars are entirely misconceived.
The Circular makes it clear that it was issued to relax certain
conditions imposed by the Government Resolution dated 2nd
December, 1968. By the Circular dated 2nd December, 1968,
issued by the Government of Maharashtra, general instructions
and directions were issued to all appointing authorities that they
should make appointments by following a regular process of
inviting applications / calling candidates from the Employment
Exchanges. Mr. Nargolkar submits that in the detailed affidavit-
in-reply it has been explained by the respondents that the High
Court administration was not in error at all. The High Court
administration has relied upon the mandate of the two
constitutional Articles relied upon by Mr. Sadavarte and has not
deviated therefrom. Equality in matters of public employment
denotes opportunity to all those placed equally. The mandate of
Article 16(1) of the Constitution of India is not to appoint for
there is no right to appoint, but a right to be considered for
appointment. That right vests in all the candidates who fulfill the
eligibility criteria and thus qualify for the post. Once there is no
vested right to appointment and even a select list candidate
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cannot claim such right, then, the appointment secured by these
petitioners cannot grant them any permanent benefits. The two
circulars relied upon are to avoid any dislocation of work. They
would not displace the regular process of appointment and confer
benefit on the progeny of a retired employee. In the
circumstances, no reliance can be placed on these circulars.
These are not compassionate appointments in any manner. For
these reasons, it is submitted that the inferences drawn by the
Chief Judge in his letter dated 16th January, 2002, cannot be
sustained. The High Court administration had clearly informed
the Registrar of the Small Causes Court that the present
petitioners be removed. They should not be allowed to continue
and contrary to law. It is in these circumstances that Mr.
Nargolkar, relying upon the judgment in the case of Renu & Ors.
(supra) submits that the writ petitions be dismissed.
12 For properly appreciating the rival contentions, we
must make a reference firstly to the appointment order and
which is more or less similar to all the petitioners. The
appointment order says that Shri Sandeep Tulshiram Mohite is
appointed as Hamal on the temporary establishment of the Court
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of Small Causes, Bombay, with effect from 17 th January, 1997, on
the terms and conditions in the order annexed to the
appointment letter. He has to comply with certain other
requirements set out in the appointment letter. The appointment
letter reads thus :
"Shri Sandeep Tulshiram Mohite, is hereby informed
that he is appointed as Hamal on the temporary
establishment of this Court with effect from 17.1.97
on the terms and conditions in the orders annexed
hereto. He is requested to state in writing whether he
accepts the above mentioned post of Hamal offered
herewith on the terms and conditions laid down in the
orders annexed hereto. If he fails to state in writing
within one week from today, his name will be
removed from the waiting list."
13 The petitioner was informed to attend the office with
original testimonials, Employment Exchange Card and Character
Certificate from two respectable persons. The appointment order
clarified that it is purely temporary and until further orders.
Then, the petitioner is informed that he is employed as Hamal
with effect from 17th January, 1997 under the Government
scheme for appointment of relatives of class IV and class III
Government employees. This appointment is purely on
temporary basis.
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14 The Government Resolution dated 14th April, 1981,
copy of which is Annexure-C in the Memo of Writ Petition
No.11250 of 2015, page 42, states that by the Government
Circular dated 2nd December, 1968, appointments in class III and
class IV posts for more than one month have to be by a regular
process. Meaning thereby, the candidate to be appointed should
be selected from those sponsored by the Employment Exchange.
However, that order and direction is relaxed. That is in relation
to class IV employees who are retired or who are going to retire
within a period of one year. Their relatives (son and unmarried
daughter) can be considered for appointment in Government
service (class IV post) as a special case. The requirement of
sponsorship from Employment Exchanges can be relaxed.
However, each of these candidates should fulfill the educational
qualifications and the requirement of age. Such employees, who
are retiring within one year or have retired, can recommend only
one son or unmarried daughter and in their case alone, the
requirement stipulated in the Government Resolution dated 2 nd
December, 1968, will be relaxed. Even if the requirement of
sponsorship from the Employment Exchanges is relaxed, still,
such candidate before filling up of his application form and
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submitting it should get his name registered in the Employment
Exchange.
15 Thereafter follows the Circular dated 10 th December,
1981. This Circular refers to the prior Circular of 14 th April,
1981, but purports to clarify certain issues. The issues which
were raised pertaining to such appointment of the son /
unmarried daughter (relatives) of a retired or retiring class IV
Government servant) should be anybody who has retired prior to
14th April, 1981. Thus, there is no time limit. Secondly, there is
no requirement that the relative of the class IV servant who has
retired or is retiring should be appointed in the same office in a
class IV servant post. Thirdly, and most importantly, whether
such appointments can be made temporarily or for such duration
or can such appointments be made on permanent basis and in
regular course. The further Circular dated 10 th December, 1981,
clarifies that these appointments can be made on permanent
basis. The further issue raised is that if the appointment is made
on a temporary basis, can this appointee be accommodated and
even if his appointment is temporary, by not terminating his
service, on last come first go basis. The clarification is not and if
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anybody has to go out of service it is the last come first go
principle which should be followed. Therefore, if for any reason
the appointment has to be terminated, then, such subsequently
appointed relative of the retired / retiring employee would have
to be relieved from service. Then, there are further issues
clarified and it has also been stated that this scheme has nothing
to do with the compassionate appointments and which are
granted to those employees who expire while in service. It is in
these circumstances that we find that though these two Circulars
are an exception to the Government Circular of 2 nd December,
1968, but that cannot be given a go-by and in the manner
suggested.
16 The High Court administration, therefore, clarified
that so far as the appointment of the five candidates, namely,
S/Shri Mohite, Jadhav, Tambe, Salvi and Kumari A.H. Lingayat
made pursuant to the directions made in the Government
Circular dated 14th April, 1981, on the establishment of the Court
of Small Causes at Bombay, the Lordships of this Court had
directed to take necessary steps for removal of these five
employees whose appointments have been continued for a period
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extending three months on the basis of wrong interpretation of
the above stated Government Circulars. This communication
from the Additional Registrar (Administration) of this Court at
pages 47 and 48 reads as under :
"Sir,
With reference to your letter N.B-
4/916/2001 dated 16/08/2001. Submitting
therewith your detailed report, on the subject noted
above, I am directed to state that the representation
of Shri Sunil M. Parab a candidate at Sr. No.33 on
Select List of Hamal on your establishment and the
report forwarded by your letter under reference,
were placed before the Honourable the Chief Justice
and Judges for consideration. On perusal of the same,
their Lordships have been pleased to permit you to
maintain validity of the said Select List until further
orders with directions to inform Shri Parab that he
will be appointed as Hamal, on your establishment as
per the seniority as and when vacancy occurs.
So far as the appointments of five candidates
viz. S/Shri Mohite, Jadhav, Tambe, Salvi and Kum.
A.H. Lingayat made in pursuance to the directions
contained in Government Circular G.A.D.No.RTR-
1080/819/12 dated 14/04/1981, on your
establishment is concerned, I am directed by Their
Lordships to take necessary steps for removal of
these said five employees, whose appointments have
been continued for the period exceeding 3 months, on
the basis of wrong interpretation of the abovestated
Government Circulars.
I am further directed by their Lordships to
inform you to be very careful in future while giving
appointments to the children of retired Class IV
Government Servants in view of the abovesaid
Government Circulars in which it is clearly
mentioned that employment to the Son/unmarried
daughter of retired Class IV employees in
Government Service may be given without
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recommendation of the Employment Exchange, only
on Temporary basis not exceeding the period of 3
months and not on permanent basis.
Kindly take note as mentioned above and
forward to this office your compliance report in the
matter."
17 Thus, what we have before us is a complete scheme set
out in the Circular of 2nd December, 1968. As far back as in 1965
itself, the Government had clarified that despite the order passed
on 23rd October, 1956, it has been noticed by the Government
that candidates are being recruited to class III and class IV posts
otherwise than through the Employment Exchanges and hence
with a view to stop this irregularity, Government again issued
orders under Circulars of its General Administration Department
dated 23rd August, 1965, to the effect that the appointing
authorities should take particular care to see that Government
orders conveying need for making recruitment through the
Employment Exchanges are followed scrupulously. Even where,
in view of urgency, they are forced to make appointments directly
without reference to the Employment Exchanges, they should
ensure that the persons so appointed are not continued in service
for more than three months and that they are replaced by
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persons recruited through the Employment Exchanges within
this period. However, as a measure to avoid immediate
dislocation of work, some appointing authorities have
misinterpreted this Circular and taken it as a permission to make
direct recruitment upto a period of three months straight away
without making any efforts to obtain candidates from
Employment Exchanges for temporary vacancies. Hence, the
Government has been insisting on making appointments by a
regular process and not in the manner done in the instant cases.
18 Once the petitioner Sandeep Mohite has been offered
appointment as Hamal on a temporary establishment of the
Court, then, there is no substance in the contentions of Mr.
Sadavarte that the appointment is against a permanent post. The
temporary establishment is referred in the appointment order. It
is clarified that the appointment will be on purely temporary
basis and until further orders. It has been clarified that the
services can be terminated at any time without assigning any
reason. The order No.1, copy of which is at page 41 of the paper-
book, further clarifies that though this is a Government scheme
for appointment of relatives of retired class IV Government
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employees, the appointment is on purely temporary basis. It is
made because one B.D. Katkar, Hamal, was promoted as driver.
Thus, these communications of 17th and 27th January, 1997,
would have to be read together. So read, it is apparent that what
is carved out by the Government Circular dated 14 th April, 1981,
is an exception. That cannot be a rule. On 10 th December, 1981,
the Government clarifies that its earlier Circular dated 14 th April,
1981, enables making of appointment as a special case. That is
an appointment made of a relative of a retired / retiring employee
and who was serving in a class IV post. Once this is taken as a
relaxation and exception, but from a reading of the clarifications
issued vide this Circular, such appointment of parties like the
petitioner cannot be treated as permanent. This is not even a
compassionate appointment. This was a special case. It was not
an exception to the general rule. On 2 nd December, 1968 itself,
the Government had, through a Circular, clarified that such
appointment can never be compared with the regular
employment or appointment. The Government Departments
have been misinterpreting these Circulars issued in 1965 and
1968 to make direct recruitment upto a period of three months
straight away without any efforts to obtain candidates from
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Employment Exchanges for temporary vacancies which are likely
to last for three months. This itself clarifies that such exceptional
appointments are made to avoid immediate dislocation of work.
Once such appointments are made and as above, then, it is not
possible to equate them with the regular appointment. The posts
themselves were not permanent, but the appointments were on a
temporary establishment. Once the permission was to make
direct appointment without reference to the Employment
Exchanges for vacancies in class III and class IV posts which are
likely to last for more than one month and the appointing
authority must record a satisfaction that there is no adequate
time to obtain candidates from Employment Exchanges, then, the
persons like the petitioners appointed pursuant to such a process
cannot claim any permanency or benefit of permanency. They
cannot be equated with the regularly appointed candidates in
Government service and against permanent posts. If any
reference is required, the Government Resolution dated 2 nd
December, 1968 itself clarifies that candidates in such posts
should bear in mind that if such posts are likely to continue for a
period of more than one month for any reason, then, the
appointing authorities should ensure that the persons appointed
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directly are replaced by the Employment Exchange candidates as
early as possible and, in any case, within three months. This
should not be interpreted as a permission to make recruitment to
vacancies which are likely to last upto a period of three months.
The Government has clarified that in view of exceptional
circumstances that the candidates recruited otherwise than
through Employment Exchange should continue beyond one
month and in no case, they should be continued beyond three
months.
19 Once assistance is taken of this exceptional mode of
appointment so as to appoint the petitioners before us, then, we
do not think that the appointment orders issued in their favour
confer them any right. No right is, therefore, created nor vests in
them to continue in employment even if they are serving the
establishment for nearly a decade. If we allow this manner and
method of appointment to continue and that too in the
establishments of the Courts, it will be a mockery of the rule of
law. We quash and set aside the appointments made in such
manner in other Government establishments or on
establishments of semi-Government bodies, but when it comes to
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our own Court, our own administration, we do not obey the
ordinary and general rule of law. We cannot become an exception
to this by allowing appointments of the present nature to
continue endlessly. That would mean deserving and eligible
candidates are kept out of the process and by a method which has
no legal sanctity. If immediate dislocation of work is taken care
of by the Government Circulars dated 14th April, 1981, 10th
December, 1981, then, these circulars cannot override the
specific circulars in the field, namely, dated 23 rd October, 1956,
23rd August, 1965 and 2nd December, 1968. We are in agreement
with Mr. Nargolkar that the petitioners have no vested right to
continue in the posts.
20 We have carefully read the letter of the Chief Judge of
the Court of Small Causes, Bombay, dated 16 th January, 2002. He
clarifies that as far as the five petitioners are concerned, their
appointments have been made in pursuance of the Government
Circular dated 14th April, 1981 and subsequent Circular dated
10th December, 1981. The Chief Judge relies upon this Circular
and the wording thereof to submit that the condition of
recommendation of Employment Exchange for appointment in
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class III and class IV Government posts is now relaxed / cancelled
by the Government of Maharashtra by these 1981 Circulars.
That is not the correct understanding of the 1981 Circulars and
particularly in the light of what has been held by us hereinabove.
We have not been shown any right and vesting in a retiring or
retired Government employee to nominate and recommend his
relative (one son / unmarried daughter) for appointment in
Government service and in class IV post. Therefore, if such a
right does not vest in law in any of these employees, they cannot
rely upon the Circular of 1981 and claim to have been appointed
on a permanent post and in accordance with the rules. Though
the Chief Judge may say that the Government desired to show
sympathy to those retiring or retired class IV servants and give
them an opportunity to recommend one relative for appointment
in Government service, we are sorry to say that nothing of this
nature can be culled out from the above Government Circulars.
These enable making of temporary appointments and for
specified periods. This is not a manner or method of appointing
candidates to class III and class IV Government posts. These two
Circulars cannot be read so as to circumvent the earlier binding
1965 Circular which still holds the field. Even if there is some
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correspondence on the subject, it is apparent that the High Court
has always been insisting on the Chief Judge to act in conformity
with the Circulars of 1981. That does not mean he has any
blanket permission or authority from the High Court to continue
the petitioners permanently in services. The appointment cannot
be said to be a regular one. To our mind, the reading of the
Circulars by the Chief Judge was totally flawed and legally
unsound. He was never permitted to go ahead with the
employment and beyond the specified period. If the posts were
regular, they ought to be created on the establishment of the
Court of Small Causes at Bombay. There is a process by which
such posts are created. An approval and sanction has to be
obtained for creation of such posts and thereafter filling them.
The filling up has to be in accordance with the Government
Circulars and rules in the field. The appointments have to be in
consonance with the mandate of Articles 14 and 16(1) of the
Constitution of India. If public posts have to be filled in there is
no licence to resort to subterfuge or to any private
understanding. No amount of assurances or promises given and
contrary to the settled norms and policies can, therefore, be
upheld. If an appointment has to be made, it has to be made in a
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transparent, non-arbitrary and non-discriminatory manner. If
the appointment is made by a process which is unfair,
unreasonable and unjust, then, it cannot stand the scrutiny of
Articles 14 and 16(1) of the Constitution of India. There are
rules in place and there are defined policies holding the field.
These have to be adhered to. It is in these circumstances that the
reliance placed by Mr. Sadavarte on the decisions of the Hon'ble
Supreme Court and this Court is entirely misplaced.
21 So far as the decision of the Nagpur Bench rendered in
Writ Petition No.2046 of 2010 decided on 19 th October, 2013, is
concerned, there, the petitioners were recruits in different
Departments of the Government Polytechnic in the State of
Maharashtra. They are appointed as per the policy of the
Government of Maharashtra incorporated in the Government
Resolution dated 25th July, 2002, as modified by the Government
Resolution dated 2nd August, 2003 and 3rd October, 2003. The
grievance of these petitioners was that though they have been in
the employment of the respondents for a period ranging from
three to ten years, they are not given permanency or the benefit
of permanent appointment.
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22 The Division Bench referred to the notifications relied
upon to hold that the appointments were to be made on contract
basis for the period of two years or until the candidates
nominated by the Maharashtra Public Service Commission were
available. What was relevant for the issue was that the resolution
of the Government dated 2nd August, 2003, constitutes a
Selection Committee for appointment of the Lecturers in the
Government Polytechnics and the composition of the Selection
Committee denoted that all candidates like the petitioners who
applied for the post were interviewed and the selections were
made by the Committee. The petitioners were given a lump-sum
monthly pay package and their appointment order was for a
period of two years. The Director of Technical Education issued
an order dated 26th October, 2005, and continued the Lecturers
whose names are mentioned in the order for a period of two years
till 26th October, 2007, but with a rider that the continuation will
be till the regularly selected candidates are available. The
Lecturers who were appointed on contractual basis submitted a
charter of demands to the Government of Maharashtra which
was considered by the Government and it was directed that these
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Lecturers will be continued in service on contractual basis after
giving a technical break up of four to five days until the
candidates regularly selected by the MPSC were available. Thirty
days leave was also sanctioned though they were contractual
employees. Their monthly salaries were increased. In due
course, the Director of Technical Education submitted a proposal
on 11th August, 2008, for grant of pregnancy leave and casual
leave to these contractual employees, but the Government of
Maharashtra from 15th August, 2008, rejected the proposals.
However, subsequently, by the communication dated 10 th
November, 2009, permitted the Directorate of Technical
Education to continue the services of all the Lecturers appointed
on contractual basis after giving a technical break. It is in these
circumstances that the petitioners were working in the
respondents Government Polytechnic on contract basis.
23 Their argument was, as noted in paragraph 7, that
their appointment has been made by a legally and duly
constituted Selection Committee by following the procedure of
issuing advertisement, inviting applications from eligible
candidates and thereafter appointing them. They are denied
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benefits of regularisation or permanency. Though the rules were
framed under Article 309 of the Constitution of India, still, the
MPSC could not complete the process. In the meanwhile, such
temporary employees and on par with the petitioners were
granted benefits of permanency and regularisation. That is also
noted in paragraphs 21, 22, 23 of the order of the Division Bench.
24 It is in these circumstances that this Court rejected
the argument of the Government that this is a policy matter.
Rather, this Court emphasised that the State acts as a model
employer. Therefore, the denial of permanency benefits was
found to be unfair, unjust, unreasonable and contrary to the
mandate of Articles 14 and 16 of the Constitution of India. The
Government alone is to be blamed if the MPSC has not started the
process for ten years and more. It is in these circumstances that
the decision of the Hon'ble Supreme Court in the case of
Secretary, State of Karnataka & Ors. vs. Umadevi & Ors., (2006)
4 SCC 1 has no application.
25 We do not think that the petitioners can derive any
assistance from this judgment of the Nagpur Bench of this Court.
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It is distinguishable on facts. It was in the peculiar facts of that
case which enabled the petitioners to claim the relief.
26 The reliance placed on the judgment of the Hon'ble
Supreme Court in the case of State of Karnataka & Ors. vs. M.L.
Kaveri & Ors. AIR 2010 SC 2587 is once again misplaced. The
object behind the directions given in Umadevi was surely to take
steps to regularise the services of those illegally appointed
candidates who have served for more than ten years without
benefit of protection of interim orders of Courts or Tribunals as a
one-time measure. The respondents - daily wagers before the
Hon'ble Supreme Court had worked in Panchayat service for over
fifteen years without any protection from Court. That is why the
directions were issued. Those were daily wagers. They were
appointed on daily wage basis, but their services were utilised as
Typist, Literate Assistant and Watchman respectively in the
office of the Executive Engineer, Zilla Parishad in Gadag District
of the State of Karnataka. They claimed regularisation and it is in
dealing with their cases and consistent with Umadevi the
directions were issued. This judgment is also, therefore, of no
assistance.
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27 In the case of Dulu Devi vs. State of Assam & Ors. Civil
Appeal No. 8249 of 2015 decided on 9 th October, 2015, the
appellant was seeking a direction to the respondents to allow her
to continue in service as Headmistress in-charge of a Primary
School; for regularising her services and for payment of regular
salary to her for the service rendered.
28 The appellant was appointed as an Assistant Teacher
in Assamese subject in the Primary School in 1976. She was
finally appointed as an Assistant Teacher against a substantive
vacancy in the said School by order dated 19 th December, 1989.
Even though she was rendering continuous service as Assistant
Teacher for more than ten years, she was not paid salary.
Therefore, she filed a writ petition in which direction was issued
to the Deputy Inspector of Schools to enquire into non-payment of
salary and furnish a report. On submission of such report, the
Additional Secretary, Education Department, by order dated 3 rd
May, 2000, directed the Deputy Inspector of Schools to release
the salary of the appellant for the period she rendered her
services. That writ petition was disposed of by the High Court by
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confirming the direction. That order was allowed to become final.
29 Therefore, all the arrears of her salary and other
allowances till August, 2007, were paid. In the meanwhile in
2005, she was given a charge of the post of Headmistress. She
was allowed to cross the efficiency bar and granted increments.
In connection with some other case, a report was submitted in
which it was stated that there were 193 candidates who had been
appointed in 1989, but were subsequently terminated. Such
candidates were still drawing their salaries. In the list of such
candidates, the name the appellant was shown at Sr. No.168.
Though such a report was submitted, the authorities were not ad
idem about the correctness of the contents thereof. Therefore,
the order dated 9th February, 2007, stopping the salary of 193
candidates, including the appellant could not have been passed.
Yet, the High Court dismissed the writ petition. Though there
was no termination of the service, the salaries were stopped and
illegally. It is on such an issue that the Supreme Court passed an
order in favour of Dulu Devi. This judgment does not lay down
any general rule. It is only because Dulu Devi's services were not
expressly terminated and there was no agreement in that regard
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that the direction to stop the salary was interfered with. It is in
these circumstances that the reliance was placed on those
decisions of the Supreme Court wherein it has been held that an
order of termination and passed by a Government body or a
statutory authority should be communicated and only then it is
legal and valid. There being no proof of such a communication
that Dulu Devi's request was upheld.
30 In the case of State of Jharkhand vs. Kamal Prasad &
Ors., the appointments were termed irregular but the appointees
continued on ad-hoc basis for ten years. They were working for
ten years or more and though additional posts were created on
the establishment, they were not absorbed. It is in these
circumstances that the benefit of one-time regularisation and
other consequential benefits were granted by the High Court of
Jharkhand and which were not interfered with by the Hon'ble
Supreme Court. Those are also factors peculiar to those Assistant
Engineers who were working on ad-hoc basis for more than ten
years though additional posts were sanctioned and created.
31 In the above circumstances we do not find that
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reliance can be placed on any of these judgments or pendency of
Writ Petition No. 11408 of 2014 and other petitions in this Court.
32 On the other hand we find that Renu & Ors. vs.
District and Sessions Judge, Tis Hazari concludes the issue. The
Hon'ble Supreme Court has found and repeatedly that
appointments to public posts which are not made consistent with
the mandate of Articles 14 and 16 of the Constitution of India
cannot be protected or upheld. The pertinent observations of the
Hon'ble Supreme Court and to be found in paragraphs 19, 20, 21
and 22 enable us to conclude that the departure without following
the due procedure has not been upheld.
33 We would only reproduce the above paragraphs and
paragraphs 26, 27, 28 and 29 :
"19 In making the appointments or regulating
the other service conditions of the staff of the High
Court, the Chief Justice exercises an administrative
power with constitutional backing. This power has
been entrusted to the safe custody of the Chief Justice
in order to ensure the independence of the Judiciary,
which is one of the vital organs of a Government and
whose authority is to be maintained. The discretion
exercised by the Chief Justice cannot be open to
challenge, except on well known grounds, that is to
say, when the exercise of discretion is discriminatory
or mala fide, or the like(s).
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20 Even under the Constitution, the power of
appointment granted to the Chief Justice under
Article 229 (1) is subject to Article 16 (1), which
guarantees equality of opportunity for all citizens in
matters relating to employment. 'Opportunity' as
used in this Article means chance of employment and
what it guaranteed is that this opportunity of
employment would be equally available to all.
21 As a safeguard, the Constitution has also
recognized that in the internal administration of the
High Court, no other power, except the Chief Justice
should have domain. In order to enable a judicial
intervention, it would require only a very strong and
convincing argument to show that this power has
been abused. If an authority has exercised his
discretion in good faith and not in violation of any
law, such exercise of discretion should not be
interfered with by the courts merely on the ground
that it could have been exercised differently or even
that the courts would have exercised it differently
had the matter been brought before it in the first
instance or in that perspective.
22 Article 235 of the Constitution provides for
power of the High Court to exercise complete
administrative control over the Subordinate Courts.
This control, undoubtedly, extends to all functionaries
attached to the Subordinate Courts including the
ministerial staff and servants in the establishment of
the Subordinate Courts. If the administrative control
cannot be exercised over the administrative and
ministerial staff, i.e. if the High Court would be
denuded of its powers of control over the other
administrative functionaries and ministerial staff of
the District Court and Subordinate Courts other than
Judicial Officers, then the purpose of superintendence
provided therein would stand frustrated and such an
interpretation would be wholly destructive to the
harmonious, efficient and effective working of the
Subordinate Courts. The Courts are institutions or
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organism where all the limbs complete the whole
system of Courts and when the Constitutional
provision is of such wide amplitude to cover both the
Courts and persons belonging to the Judicial Office,
there would be no reason to exclude the other limbs of
the Courts, namely, administrative functionaries and
ministerial staff of its establishment from the scope of
control. Such control is exclusive in nature,
comprehensive in extent and effective in operation.
(Vide: The State of West Bengal & Anr. v. Nripendra
Nath Bagchi, AIR 1966 SC 447; Shri Baradakanta
Mishra v. Registrar of Orissa High Court & Anr., AIR
1974 SC 710; Yoginath D. Bagde v. State of
Maharashtra & Anr., AIR 1999 SCC 3734 : (1999 AIR
SCW 3775); Subedar Singh & Ors. v. District Judge,
Mirzapur & Anr., AIR 2001 SC 201 : (2000 AIR SCW
4086); High Court of Judicature for Rajasthan v. P.P.
Singh & Anr., AIR 2003 SC 1029 : (2003 AIR SCW
539); and Registrar General, High Court of Judicature
at Madras v. R. Perachi & Ors., AIR 2012 SC 232 :
(2011 AIR SCW 5972).
.... .... .... ....
26 In Binod Kumar Gupta & Ors. v. Ram Ashray
Mahoto & Ors., AIR 2005 SC 2103, this Court did not
accept the contention that appointment could be
made to Class-IV post in Subordinate Courts under
the Civil Court Rules without advertisement in the
newspapers inviting applications for the posts as that
would lead to lack of transparency and violation of
the provisions of Article 16 of the Constitution. The
Court terminated the services of such appointees who
had worked even for 15 years observing that the
Court otherwise "would be guilty of condoning a gross
irregularity in their initial appointment."
27 To say that the Chief Justice can appoint a
person without following the procedure provided
under Articles 14 and 16 would lead to an indefinite
conclusion that the Chief Justice can dismiss him also
without holding any inquiry or following the
principles of natural justice/Rules etc., for as per
Section 16 of General Clauses Act, 1897 power to
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appoint includes power to remove/suspend/ dismiss.
(Vide: Pradyat Kumar Bose v. The Hon'ble Chief
Justice of Calcutta High Court, 1956 SC 285; and
Chief Justice of Andhra Pradesh & Anr. v. L.V.A.
Dikshitulu & Ors., AIR 1979 SC 193).
But as no employee can be removed without
following the procedure prescribed by law or in
violation of the terms of his appointment, such a
course would not be available to the Chief Justice.
Therefore, the natural corollary of this is that the
Chief Justice cannot make any appointment in
contravention of the Statutory Rules, which have to
be in consonance with the scheme of our Constitution.
28 In State of West Bengal & Ors. v. Debasish
Mukherjee & Ors., AIR 2011 SC 3667 : (2011 AIR
SCW 5433), this Court again dealt with the provisions
of Article 229 of the Constitution and held that the
Chief Justice cannot grant any relief to the employee
of the High Court in an irrational or arbitrary manner
unless the Rules provide for such exceptional relief.
The order of the Chief Justice must make reference to
the existence of such exceptional circumstances and
the order must make it so clear that there had been
an application of mind to those exceptional
circumstances and such orders passed by the Chief
Justice are justifiable. While deciding the matter, the
court placed reliance on its earlier judgment of the
Constitution Bench in State of U.P. & Ors. v. C.L.
Agrawal & Anr., AIR 1997 SC 2431 : (1997 AIR SCW
2346).
29 Thus, in view of the above, the law can be
summarised to the effect that the powers under
Article 229 (2) of the Constitution cannot be
exercised by the Chief Justice in an unfettered and
arbitrary manner. Appointments should be made
giving adherence to the provisions of Articles 14 and
16 of the Constitution and/or such Rules as made by
the legislature."
34 The operative directions and consistent with the
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above paragraphs issued in paragraph 35, therefore, bind the
High Court administration. It acted in accordance with this
judgment for that merely reinforces and reiterates the position in
law. That position in law was obtaining throughout. It could not
have been bypassed. In the present case, that position was
bypassed and we cannot allow parties like the petitioners to
derive advantage from such departure or bypassing of the rule of
law by the appointing authorities. Each one of them, therefore,
ought to blame himself and the appointing authorities.
35 Our view is also supported by the decision of the
Hon'ble Supreme Court in the case of Secretary to Government
Commercial Taxes And Registration Department, Secretariat and
Anr. vs. A. Singamuthu, Civil Appeal No.3770 of 2017 decided on
7th March, 2017
36 As a result of the above discussion, the writ petitions
fail. Rule is discharged in each of the petitions, but without any
order as to costs.
36 In the passing we clarify that since the appointments
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have been made from 1997 by the Chief Judge of the Court of
Small Causes and the petitioners have continued in service till
the impugned orders were passed, consistent with the Circular
that the authorities relied upon while appointing them, the cases
of the petitioners be considered for regular appointment not only
on the establishment of the Court of Small Causes, but such other
Courts in the City of Mumbai if otherwise permissible in law.
While considering their cases, appropriate relaxations be given
as far as the requirement of age and educational qualifications
etc. The relaxations and concessions may be granted purely to
accommodate these petitioners and as a special case. If,
therefore, any other establishments have issued advertisements
inviting applications to fill up the class IV posts on their
establishments, including those establishments and departments
of the Government of Maharashtra, then, consistent with the
1981 Circulars and our orders and directions, the cases of the
petitioners may also be considered. Beyond these observations,
we cannot issue any positive command for a writ of mandamus
cannot be granted at the instance of parties like the petitioners
who had no legal right to the posts.
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37 At this stage, Mr. Sadavarte prays for a stay of this
order and direction for a period of sixteen weeks.
38 This request is opposed by the respondents.
39 Having heard both sides on this limited point, we are
of the opinion that we have adequately protected the petitioners
even though we have held that they have no right to hold the
posts in question. We do not see how an order dismissing the
petition can be stayed. The request is, therefore, refused.
B.P. COLABAWALLA, J. S.C. DHARMADHIKARI, J.
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